Guest Post: Equality as Non-Exclusion: Justice Bhat’s Dissent in the EWS Case

[This is a guest post by Kieran Correia.]

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The Supreme Court recently handed down a split verdict in Janhit Abhiyan v Union of India, upholding the 103^rd Amendment to the Indian Constitution. The Amendment, in the main, enabled affirmative action for economically weaker sections (EWS), defined by an annual family income of less than Rs 8 lakhs. The verdict cleaved along two issues, with all five justices agreeing on two questions—that reservations grounded solely in ‘economic criteria’ do not violate the basic structure of the Constitution and that reservations can be extended to unaided private educational institutions. The justices disagreed over the third issue: whether the Scheduled Castes, Scheduled Tribes, and the backward classes could be excluded from the scope of EWS reservations.

The Amendment was upheld by Maheshwari, Trivedi, and Pardiwala JJ—all tendering separate, concurring opinions. In dissent was Bhat J, with whose opinion Lalit CJ agreed. Justice Bhat’s opinion is significant for (re)articulating a vision of equality—threading various constitutional articles together into a recognizable ‘identity’—that is fundamentally non-discriminatory and non-exclusionary. Bhat J’s opinion suffers from one constitutional infirmity, which we will examine briefly. But the bulk of this post will examine the rest of the sole opinion that continues, for now in dissent, a long tradition of reading the Constitution in a manner faithful to its purpose.

Non-discrimination and non-exclusion as part of the ‘basic structure’

Since the Court was reviewing a constitutional amendment, it would have to deploy basic-structure review. While hardly perfect, the ‘basic structure’ has come to stand in for India’s constitutional identity—at least as perceived by the courts. The basic structure doctrine was introduced in the now famous Kesavananda Bharati case. In broad strokes, it encapsulates the idea that there are certain features of the Constitution—which have gradually grown through the years—that are unamendable by Parliament. The Court views these facets as so integral to this Constitution that Parliament—even with a special majority—cannot ‘damage or destroy’ them. In other words, this small constitutional pantheon of ideas and practices are inseparably sewn into the fabric of the Constitution; to do away with the basic structure is to do away with the Constitution itself.

Justice Bhat starts off with the point of dissent—whether the exclusion of SCs, STs, and the backward classes is constitutionally permissible. The Union did not disagree over whether the Amendment was exclusionary. Instead, the contention was that it did not “damage or destroy” an element of the basic structure—in this case, the Equality Code.

Bhat J begins by analysing the Equality Code (which he takes to include articles 14 to 17 of the Constitution). He sees the Code as something beyond a set of abstract platitudes; instead, it is an explicit non-discriminatory injunction against the state, which can be directly invoked against discrimination prevalent in society. The judgement locates this Code in the context of a country that is still highly stratified along caste lines and that continues to deny opportunity to individuals solely based on the caste into which they were born. The Constitution’s framers explicitly sought to combat the exclusion this system engendered, and this formed the basis of the Equality Code.

This was the outcome, Anupama Rao tells us, of a long period of organizing, first forged in the complex negotiation between colonial modernity and anti-caste activism towards the end of the nineteenth century. BR Ambedkar was able to take advantage of this and establish dalits as a class of people especially deserving of state protection, leading to the non-discrimination charter inscribed in the Constitution that specifically proscribes caste discrimination. This, moreover, was a positive duty, not merely a negative injunction. The Constitution’s drafters, Bhat J observes:

… went to great lengths to carefully articulate provisions, such that all forms of discrimination were eliminated … to ensure that there was no scope for discrimination of the kind that the society had caused in its most virulent form in the past, before the dawn of the republic. These, together with the affirmative action provisions … was to guarantee that not only facial discrimination was outlawed but also that the existing inequalities were ultimately eliminated [sic]. (emphasis author’s) (para 60)

The Constitution thus understood equality in terms of non-discrimination and non-exclusion. This is, of course, nothing new. Perhaps the most emphatic statement on this came in 2009, when the Delhi High Court read down section 377, which criminalized consensual homosexual intercourse. The HC, Gautam Bhatia observes, merged the Constitution’s guarantees of equal protection and non-discrimination, reordering our understanding of equality into one framed in the language of non-discrimination.

If this was all Justice Bhat did, it would be far from novel and fall far short of what it had set out to do. The next phase Bhat J embarks on—necessary to evaluate a constitutional amendment—is to read this vision of equality into the basic structure. Since this was the first time the State exercised its constituent amending power to ‘practice exclusion of victims of social injustice’, it presented an opportunity for the Court to hitch the principle of non-discrimination to equality. As Justice Bhat reasons:

[T]he irresistible conclusion is that non-discrimination—especially the importance of the injunction not to exclude or discriminate against SC/ST communities [by reason of the express provision in Articles 17 and 15] constitutes the essence of equality: that principle is the core value that transcends the provisions themselves; this can be said to be part of the basic structure. (para 77) (emphasis author’s)

What Justice Bhat is doing here is rearticulating the basic feature of equality in the grammar of non-discrimination. This—by its very nature—sets out a different vision of our constitutional identity, one in line with the framers’ intentions. By placing the principle of non-discrimination on the highest pedestal, Bhat J is essentially arguing that it lies at the very heart of the Constitution; not even Parliament can abrogate that.

Importing article 14’s test into basic-structure analysis

After ensconcing this imagination of equality into the basic structure, Justice Bhat makes, in my view, the misstep of importing the ‘reasonable classification’ test—a relic of an older, more formalist equality jurisprudence. The main issue here, however, is the Court’s confusion of basic-structure analysis with statutory analysis.

The Court has, in the past, engaged in testing the reasonable classification underlying an amendment. In Indira Gandhi v Raj Narain, for example, Chandrachud J (as he then was) analysed the constitutionality of the 39^th Amendment—which Mrs Gandhi’s government introduced to shield her legally contested election from judicial scrutiny—through the prism of reasonable classification. In so doing, he reduced the feature of equality, which he recognized as part of the basic structure, to article 14 and, logically, extended article 14’s test to the basic structure.

This, as Sudhir Krishnaswamy argues, is a flawed approach. The basic structure of the Constitution is not reducible to individual articles; as Mathew J’s opinion in the same case highlights, basic features must be woven out of a broad range of articles. The Kesavananda case clearly did not locate the basic features it identified—constitutional supremacy, secularism, and so on—in individual articles; indeed, they could not be. The abstraction of the basic structure in the language of principle—as its critics would agree—is the point.

Bhat J’s choice to do so here is, with respect, all the more baffling when he acknowledges that the reasonable classification doctrine is not part of the basic structure (para 78). While his analysis eventually yields the result that the Amendment violates the test, this mode of enquiry is constitutionally suspect, at the very least, in examining an amendment. Instead, his enquiry should have only been whether the amendment ‘damages or destroys’ the basic structure—which, we will see, he eventually leads to.

Resolving the individual–community dialectic

The opinion then moves on to the subject of the Constitution’s affirmative action provisions—the individual or the community. Bhat J makes a two-pronged argument here: reservation policies are made on the basis of community (i.e., caste groups) but for the benefit of the individual. The application of this understanding of compensatory discrimination runs against the logic underlying the EWS reservations.

First, the EWS reservations use economic criteria—namely, family income—as the proxy for ‘economic disadvantage’. The petitioners contended, and Justice Bhat agreed, that poverty is an individual disadvantage, in the sense that it is not reducible to ascriptive identity—for example, caste—even though it is the result of structural features in the economy. As he avers:

[The] goal of empowerment through ‘representation’, is not applicable in the case of reservations on the basis of economic criteria—which as the petitioners laboriously contended, is transient, temporary, and rather than a discernible ‘group’, is an individualistic characteristic [sic] (para 97).

This is juxtaposed with caste, which, as Bhat J earlier recognized, is a group disadvantage. The inequalities the Constitution sought to extirpate were inequalities generated by caste structures that limit the potential of an individual based on an accident of birth. Caste—Ambedkar famously defined it as an ‘enclosed class’—cannot be transient or temporary. Poverty’s transience, therefore, is important when we remember that reservations are primarily a tool for securing representation in institutions to groups historically denied this right.

Secondly, however, Justice Bhat emphasizes that the right (to equality, non-discrimination, and so on) is conferred on—and for the benefit of—the individual. A Scheduled Caste woman, therefore, who meets the criteria under the newly inserted clauses would be individually discriminated against through the exclusion principle at work here—solely because she belongs to a Scheduled Caste.

Exclusion as violative of the basic structure

Bhat J then segues into what should have been the mode of enquiry under his basic-structure review: whether the amendment reaches the level of ‘offending or damaging the very identity of the Constitution’ (para 99). A constitutional amendment is unlike ordinary legislation; once made, it is part of the Constitution itself. Therefore, it merits a higher standard of review—the ‘destroy or damage’ test Kesavananda originally laid out—that must view the impugned amendment against the backdrop of the identity of the Constitution.

Importantly, Justice Bhat finds that this high threshold is met. The exclusion of groups the Constitution markedly set out to protect damages the Equality Code of the Constitution. As he sums up:

The exclusion of those sections of society, for whose benefit non-discriminatory provisions were designed, is an indefensible violation of the non-discrimination principle, a facet that is entwined in the Equality Code, and thus reaches to the level of offending or damaging the very identity of the Constitution (para 99).

He goes on to rebuke the Union’s disingenuous framing of SCs/STs/backward classes as people already benefitting from affirmative action policies—and therefore undeserving of consideration in the EWS category. These groups are beneficiaries of compensatory discrimination meant to remedy centuries of marginalization at the hands of an order which deemed them less than equal. The exclusion inherent in ‘other than’, in the newly inserted clause, ‘strikes at the heart of the Equality Code.’

What next?

The Court has continued its trend of according deference to the Union when it comes to reservation policies. Many of the majority opinions contain disturbing obiter that run counter to the idea of equality the Constitution envisions; the dilution of reservations meant to rectify centuries-long discrimination seems the logical culmination. Bhat J’s dissent—in striking opposition—articulates a transformative vision of our constitutional identity, one that is anchored to a history of striving to ensure oppressive structures are relics of the past. But for now, its wisdom will be left to another set of lawyers and activists to reclaim.